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“Junk Science” Used by Defense in Birth Injury Cases

Virtually all Illinois birth injury claims stems from accusations of medical malpractice on the part of doctors, nurses, and other medical providers during the labor process. When a lawsuit is filed following this malpractice, the central issue in the case is whether or not the medical providers acted according to reasonable medical standards when providing care during the labor. That presents the obvious question: what constitutes reasonable care?

The main way that the question is answered for a jury during a trial is via use of expert witnesses. Jury members are not expected to know based on their own knowledge what should have been done by the medical professionals which might have prevented the injury. Instead, experts who are trained in the area testify based on credible information and scientific theories to explain what the reasonable standards are and how a breach of those standards did or did not play into the cause of the injury. Each Chicago birth injury attorney at our firm is aware of the crucial role played by these experts.

However, not all experts are created equal.

In order to ensure that juries are not deceived into considering expert opinions which have very little scientific merit, judges are charged by the U.S. Supreme Court with being “gatekeepers” on this issue. In short, judges are only supposed to allow an expert witness to testify if the science on which they are speaking meets certain criteria. The goal is to prevent “junk science” from being introduced and unfairly skewing the jury’s consideration of the issue. According to the rules outlined in the most famous Supreme Court case on this topic (Daubert v. Merrell Dow Pharmaceuticals), the court is suppose to consider five criteria when deciding whether to let an expert testify regarding a certain theory.

1) Is the theory based on empirical testing that is testable, refutable, and falsifiable?
2) Has the theory be published on frequently and subject to peer review?
3) Is there a known error rate?
4) Is the evaluation process for the theory subject to various standards and controls?
5) How thoroughly has the scientific community accepted or rejected the theory?

For example, in the birth injury context, defense attorneys may try to get an expert to testify based on some alternative theory which might fail to affirmatively meet the basic conditions outlined above. As a recent article from the New York Personal Injury Attorney Blog explained, this is the case in some Erb’s palsy defenses. Erb’s palsy is an injury that is often suffered by children during the birthing process. It arises when a child’s shoulder becomes caught in the mother’s pelvis. If the doctor pulls on the child’s head during this process, the brachial plexus nerve bundle may become damaged. This often leads to nerve problems in the child’s arms. Our Illinois birth injury lawyers have worked with many local families whose children have developed Erb’s palsy as a result of medical malpractice.

In trying to defend lawsuits stemming from Erb’s palsy, some defense lawyers offer a “natural birth theory” to argue that the excessive force may have been caused by the birth itself and not the doctor’s conduct. The problem is that there has essentially been zero empirical studies that suggest that this defense has merit. Instead, only half a dozen doctors have published on the subject-each citing one another in their work. Those same doctors frequently travel across the country to testify about this “alternative” theory that they have worked up.

Recently, for the first time ever, a state trial court and appellate court did not allow the “natural forces” defense to be used at trial for failure to meet the required standards for proper expert testimony. Hopefully more courts across the country follow this lead and demand more of expert testimony from defense witnesses in these cases.

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